Dedicated to the need for basic change in the structure of our political and economic system, we seek to unite the lawyers, law students, legal workers and jailhouse lawyers of America, to function as an effective political and social force in the service of the people, to the end that human rights shall be regarded as more sacred than property interests.

Discrimination in Prison

Transgender people in prison often face a variety of types of discrimination. For this reason, in 2002 the National Lawyers Guild partnered with the City and County of San Francisco’s Human Rights Commission to develop model protocols for the treatment of transgender people in San Francisco County Jail.2 Unfortunately, most prisons do not implement such policies concerning the treatment of transgender people in their custody. Prison is typically a highly gendered environment that requires the classification of prisoners into male and female bodies. One common problem is discrimination in gender identity or expression. This may involve policies that require prison staff to refer to people in prison by titles or pronouns associated with their birth sex (for example, calling a transwoman “Mr.” and “he” against her wishes) or instituting mandated dress and grooming codes that have a disparate impact on transgender people (for example, requiring all people in men’s prisons to wear masculine clothing, refusing to permit inmates in men’s prisons to use makeup, and denying transgender women in men’s prisons access to bras or prescription hormones).3,4 In addition, prison staff often discriminate against transgender people by asking them to strip unnecessarily for “gender checks,” asking improper questions about private details of their anatomy, or placing them in isolation as the alternative to an unsafe group placement.

Discrimination and violence against transgender individuals in jails and prisons is a serious issue. Physical and sexual assault behind bars remains a serious problem: 16% of respondents in the National Transgender Discrimination Survey who had been to jail or prison reported being physically assaulted and 15% reported being sexually assaulted.5 In recent years, the reality of anti-transgender discrimination behind bars has raised the attention of groups advocating for the rights of transgender people. The Transgender, Gender Variant, and Intersex (TGI) Justice Project has a helpful guide that covers a range of issues applicable to transgender inmates titled Surviving Prison in California: Advice By and For Transgender Women. Though written primarily for a male-to-female audience, the guide has tips that can be useful to any incarcerated transgender individual or their advocates. This resource is available online at http://www.tgijp.org/prison-survival-guide.html.

Transgender people in prison frequently face verbal humiliation from both prisoners and staff. Transgender people often have difficulty accessing hormone replacement therapy (HRT) while incarcerated. In some cases, hormones that have been prescribed, approved, and ordered by a doctor and/or court are not accessible to an inmate because of uncooperative staff or medical providers in the jail or prison.6 Transgender people often face additional types of medical neglect, both in receiving transgender-specific care and in general medical attention. Transgender people in prison are often subjected to very serious discrimination including sexual harassment, physical assault, and even sexual assault and rape both by fellow inmates and staff.

Current case law views two primary issues for transgender prisoners–placement and access to hormonal therapy–through the lens of the Eighth Amendment “deliberate indifference” standard adopted in Farmer v. Brennan, which will be discussed later. Individuals that feel like their rights have been violated while behind bars can use The Jailhouse Lawyer’s Handbook, a helpful guide developed by National Lawyers Guild’s Prison Law Project and the Center for Constitutional Rights, to learn how to file a lawsuit in federal court to challenge their treatment: http://ccrjustice.org/files/Report_JailHouseLawyersHandbook.pdf

Placement

Common practice in the California prison system is that transgender people who have not had genital surgery are housed according to birth sex, regardless of how long an individual may have lived in his or her present gender identity, and regardless of how many other types of medical transition treatments used, such as hormones, facial surgeries, or top surgeries, and regardless of the inmate's appearance. For example, a transgender woman who has been on hormones, has had a tracheal shave and facial reconstruction surgery, has breasts, long hair, and lives full time as a woman, but has not had genital surgery would be classified as male and incarcerated in a male facility.7 It is easy to see how this policy creates potentially dangerous situations for transgender inmates, particularly in circumstances where transgender women are housed in men’s prisons, renowned for sexual violence. In contrast, a new policy adopted by the Illinois Department of Corrections requires a psychiatrist to evaluate transgender inmates individually, and a case-by-case determination on prison placement is made. The assessment considers a variety of factors, including inmate safety, and genital status is not determinative.8 In 2010, a California bill which would have required prison officials to consider the sexual orientation and gender identity of prisoners when making placement determinations was vetoed by then-governor, Arnold Schwarzenegger.9

In California, once a person is booked, inmates have no choice in who their cellmate is or what location they will be placed. “Inmates are not entitled to single cell assignment, housing location of choice, or to a cellmate of their choice”10 unless there is a safety concern with the assigned cellmate. If individuals are incarcerated and feel unsafe, they still have the option to alert staff and request a move for personal safety reasons. For instance, transgender inmates may feel more safe in a “special needs yard,” than “general population.” Individuals who are concerned with safety in the prison system can, upon entry, also request “administrative segregation” (isolation), though this will not always be granted. Moreover, administrative segregation does not ensure that transgender inmates are protected from violence by prison guards, and may actually lead to increased exposure to violence.11 Administrative segregation comes with several other disadvantages as well because it denies prisoners recreational, educational, occupational, and other opportunities,12 which may in turn violate a prisoner’s constitutional rights.13 One final note, administrative confinement is subject to Due Process, and prison officials must give the reasons for why an inmate is placed in administrative segregation.14

Violence

In California, prison officials are required to protect prisoners from “foreseeable harm by third parties,” including violence at the hands of other prisoners.15 However, anecdotal evidence indicates that most abuse suffered by transgender prisoners in women’s facilities is usually at the hands of white male correctional officers.16 Prison officials who display a "deliberate indifference" to this duty violate the Eighth Amendment prohibition of cruel and unusual punishment. The U.S. Supreme Court defined "deliberate indifference" in Farmer v Brennan, 511 U.S. 825 (1994). Farmer involved a transgender woman who was severely beaten and raped by her male cellmate in a maximum-security prison.17 The Court declined to adopt a definition of deliberate indifference that would hold a prison official liable for violence inflicted on a prisoner when the official "should have known" the prisoner was in danger. Instead, the Court ruled that an officer is in violation of the Eighth Amendment where the officer is found to have actual knowledge that the prisoner is at risk of violence and deliberately fails to act on that knowledge, a more difficult standard to meet.

According to Amnesty International, an inmate’s “perceived or actual sexual orientation is one of four categories that make a female prisoner a more likely target for sexual abuse, as well as retaliation when she reports that abuse.”18 [Fifty-nine] percent of transgender inmates reported experiencing sexual assault while in a California correctional facility, and [forty-eight] percent reported engaging in sexual acts that, from their point of view, were not against their will, but nonetheless they would rather not have done.19 Moreover, prisons do not provide inmates with condoms, on the belief that prisoners are not or should not be having sex, which means sexual assaults in prison can lead to HIV-infection or the transmission of other diseases that, in turn, increase a prisoner’s stigmatization.20

On September 22, 2005, Governor Arnold Schwarzenegger signed the Sexual Abuse in Detention Elimination Act.21 This act is not specifically for transgender inmates, but it does include some provisions which would appear to be helpful to transgender inmates, such as:

The Department of Corrections and Rehabilitation inmate classification and housing >assignment procedures shall take into account risk factors that can lead to inmates and >wards becoming the target of sexual victimization. §2636(a) [emphasis added] Inmates and >wards who file complaints of sexual abuse shall not be punished, either directly or indirectly, >for doing so. If a person is segregated for his or her own protection, segregation must be >nondisciplinary. §2637(b) [emphasis added] Staff shall not discriminate in their response to >inmates and wards who are gay, bisexual, or transgender who experience sexual >aggression, or report that they have experienced sexual abuse. §2637(e) [emphasis added]22

According to the 2008 National Former Prisoner Survey, one in ten former inmates, including prisoners who said they were transgender, reported being sexually victimized at least once during their incarceration.23 In May 2012, the United States Department of Justice set binding national standards aimed at protecting inmates from prison rape in all federal, state, and local adult prisons and jails, lockups, community confinement facilities, and juvenile facilities.24 The standards require “incorporating the unique vulnerabilities” of LGBTI inmates into training and screening protocols, among other things.25 State and local facilities had one year to come into compliance with the new standards.

Often, transgender prisoners may face violence at the hands of prison guards. In California, even if the inmate is a consenting adult, it is against the law for employees or officers of detention facilities to engage in sexual activity with people behind bars.26 Other states may have similar protections.27 In response to lawsuits filed by transgender persons who were sexually abused by prison guards, several courts have held that prison guards do not have qualified immunity from civil suits under 42 USC § 1983.28

Hormone Treatment

In federal prisons, the U.S. Bureau of Prisons adopted a new policy in May 2011 to provide treatment for those with “gender identity disorder,” which may include a medical evaluation and a treatment plan which allows inmates to begin hormone therapy in prison. The policy specifies that treatment will not be denied based on the status of the inmate prior to incarceration.29

In state prisons, there is not a uniform practice across California, nor nationally, governing hormone therapy for transgender inmates. Most circuits have ruled that denial of hormone therapy for transgender inmates does not meet the “deliberate indifference” standard of the Eighth Amendment. However, the law is changing in several jurisdictions. Notably, in April, 2010, Wisconsin struck down a state law that prevented transgender prisoners from receiving transgender-related medical care while incarcerated, finding that GID or transsexualism was a “serious medical need” for purposes of the Eighth Amendment.30 Most recently, the First Circuit found that state officials were deliberately indifferent to medical needs of an anatomically male civil detainee by denying the detainee female hormones.31

Anecdotally, hormone replacement therapy (HRT) is often available to transgender prisoners who had a prescription and were receiving treatments before incarceration, and the treatment will be administered at the same level as before incarceration. At least one court has ruled that a person undergoing hormone therapy prior to incarceration had a right to the same treatment while incarcerated.32

It is much more difficult to begin taking hormones while incarcerated, as a prison medical professional must determine that hormone treatment is necessary, and this ruling is especially uncommon. Inmates who wish to begin hormone therapy will first be referred to a mental health counselor. This information is based on the anecdotal findings of the Transgender, Gender Variant, and Intersex Justice Project, who provide advocacy to transgender prisoners in California, and is supported by an unpublished 9th circuit case, South v. Gomez, 211 F.2d 1275 (9th Cir. 2000). Outside of California, practices vary.

Although there is significant negative precedent for prisoner's access to transgender-related health care, new case law is emerging all the time that is helping to pave the way toward better access.33 Much of the negative case law involves prisoners who were representing themselves (pro se). Many organizations across the country, including the American Civil Liberties Union, the National Center for Lesbian Rights, the Sylvia Rivera Law Project, and the TGI Justice Project are working to support individuals fighting for transgender health care while incarcerated.34 Researching case law or asking local advocacy organizations can help show local practices or trends.

FINAL WORD OF CAUTION

Medicalizing transgender people based on a gender or sex binary creates ambiguous benefits for transgender persons that sets up the prison system as a regulator of gender non-conformity.35 While homosexuality has not been seen as a mental disorder in the United States since its removal from the DSM-III in 197336, “gender identity disorder” remained in the DSM-IV until 2012. Having GID in the DSM-IV allowed many transgender individuals to seek medical help, but the same classification also labels transgender persons as sick or ill. In 2012, the American Psychiatric Association announced that GID would be replaced with “Gender Dysphoria” in the DSM-V, defining it as “a marked incongruence between one’s experienced/expressed gender and assigned gender.”37 Health and disability laws are often the only routes available for transgender persons to gain access to basic rights, but no one’s gender identity should be stigmatized as a disabling condition or disorder.

Model Protocols on the Treatment of Transgender Persons by San Francisco County Jail, City and County of San Francisco Human Rights Commission and the National Lawyers Guild, July 2002, available from: http://www.ftmi.org/images/0Jail.pdf, Last visited May 22, 2014. ↩

However, it is now the U.S. Bureau of Prisons’ policy to provide treatment for those with “gender identity disorder”, which may include an evaluation for GID, as well a treatment plan which allows inmates to begin hormone therapy in prison. See Memorandum from the Federal Bureau of Prisons on Gender Identity Disorder Evaluation and Treatment (May 31, 2011) Available at http://www.glad.org/uploads/docs/cases/adams-v-bureau-of-prisons/2011-gid-memo-final-bop-policy.pdf, Last visited May 22, 2014. ↩

For more information, see Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners, American Civil Liberties Union National Prison Project and Just Detention International (formerly Stop Prisoner Rape), 2005, http://www.ncdsv.org/images/stillindanger.pdf, Last visited May 22, 2014. ↩